Bruce v. Byrne-Stevens & Associates Engineers, Inc.

• Citation: 51 Wn.App. 199,752 P.2d 949
• Decision Date: 21 April 1988
• Docket Number: No. 10273-1-II,BYRNE-STEVENS,10273-1-II
• Court: Washington Court of Appeals
• Parties: Robert L. BRUCE and Sallee Bruce, husband and wife; and Mildred A. Smallwood, a widow, Appellants, v.& ASSOCIATES ENGINEERS, INC.; and Patrick J. Byrne and "Jane Doe" Byrne, husband and wife, Respondents.

Page 199

51 Wn.App. 199

752 P.2d 949

Robert L. BRUCE and Sallee Bruce, husband and wife; and Mildred A. Smallwood, a widow, Appellants, v. BYRNE-STEVENS & ASSOCIATES ENGINEERS, INC.; and Patrick J Byrne and "Jane Doe" Byrne, husband and wife, Respondents.

No. 10273-1-II.

Court of Appeals of Washington Division 2.

April 21, 1988.

Paul E. Sinnitt, Sinnitt & Sinnitt, Inc., P.S., Tacoma, for appellants.

Harold T. Hartinger, Kane, Vandeberg, Hartinger & Walker, Tacoma, for respondents.

REED, Chief Judge.

Several years ago, plaintiffs' real property suffered a loss of lateral support, caused by excavation work on a neighbor's property. The neighbor proposed a plan for resolving the problem, and plaintiffs hired defendant Byrne, an engineer, to review the neighbor's proposal and to recommend his own solution. After negotiations between plaintiffs and the neighbor failed, plaintiffs filed suit against the neighbor. Byrne testified in that action, as plaintiffs' expert witness, regarding the expense for restoring lateral support. Plaintiffs were awarded a judgment for the sum to which Byrne testified.

Approximately two years later, plaintiffs began looking into the work to be done to restore lateral support. Byrne failed to provide them with the names of the contractors whom he had contacted when he calculated the expenses for the work. The contractors contacted by the plaintiffs all estimated that the job would cost over 100 percent more than Byrne had testified. In light of the difference between the sum awarded to them and the bids they received for the work, the plaintiffs performed the labor themselves and filed a claim against Byrne for the value of their labor and additional expenses. The trial court dismissed their action for failure to state a claim, holding that Byrne was immune from suit because of the absolute immunity accorded to witnesses in judicial proceedings.

We will treat a motion to dismiss for failure to state a claim as a motion for summary judgment when matters outside the pleadings are presented to and not excluded by the trial court. CR 12(b); Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wash.2d 800, 802, 699 P.2d 217 (1985). This Court takes the position of the trial court when reviewing a summary judgment, to determine whether the moving party has demonstrated that there is no genuine issue of material fact, and that the party is entitled to judgment as a matter of law. Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985).

The parties in this case agree that the plaintiffs' claim against Byrne is based upon his testimony regarding the cost of restoring lateral support. As Byrne has pointed out, a witness's statements made during the course of and relevant to judicial and quasi-judicial proceedings are generally privileged, so that the witness is immune from defamation claims. Bender v. Seattle, 99 Wash.2d 582, 600, 664 P.2d 492 (1983). In Twelker v. Shannon & Wilson, Inc., 88 Wash.2d 473, 477-78, 564 P.2d 1131 (1977), a defamation action against an expert who advised the defamation plaintiffs' opponent in a prior action, the court assumed that this immunity attaches to an expert witness's testimony.

Byrne, however, asks us to extend this rule to provide immunity to a party's own expert witness who may be negligent in preparing and providing testimony. We have found no Washington case to support his position. ¹ Under our State's policy, application of absolute privileges is not widespread. Such privileges generally are confined to those cases in which public service and the administration of justice...